Bombing Iraq Doesn’t Just Pose Serious Questions of Domestic Law, International Law May Be a Problem, Too

by Deborah Pearlstein

June 20, 2014 Opinio Juris - My blogospheric colleagues have begun debating whether the Administration has sufficient domestic legal authority to proceed with what the Times has called a “targeted, highly selective campaign of airstrikes against Sunni militants in Iraq” – reportedly now under contemplation. Jack Goldsmith, for example, thinks it might, under the 2002 statute authorizing the President to use military force against the government of Iraq for the purpose of ridding it of its “weapons of mass destruction.” My friends at Just Security and elsewhere have usefully debunked this notion, and related others (like the idea I’ve argued against here, that ISIS can be considered any kind of “associate” of Al Qaeda).

But while I’d contest the idea that the discussion so far is “premature” – it is no doubt precisely a topic with which Administration lawyers are currently struggling – the doubtful legality of such a set of strikes under domestic law is made even worse by the likely illegality of such strikes under international law. That is, even if the United States could come up with a domestic statutory basis for some military action in Iraq – extant Title 50 covert action authorities are quite broad, for example – it would still struggle for the approval of our allies on international legal grounds. Here’s my thinking.

There is currently no applicable UN Security Council authorization for the use of force in Iraq, and no serious claim that has yet been advanced that the United States would be acting in anything approximating the concept of self-defense recognized by the UN Charter and associated customary law. One could speculate the Administration has (or is looking for) indications that ISIS is threatening U.S. targets in anything beyond the broadest rhetorical way, and if such evidence emerges, of course that could change matters. But for the time being, best I can tell, the argument is non-existent. What of the possibility of a claim of collective self-defense, i.e. defense on behalf of U.S.-allied countries to which ISIS poses a plausible current threat? There, too, hard to see. ISIS poses a substantial threat to the current government of Syria, but Assad is the opposite of an ally. An enlightened Saudi vision of that nation’s interests might argue for the Saudis to worry about and actively oppose ISIS advances, but the shared Sunni affiliation (coupled with widespread reports elements of the Saudi population have been actively funding ISIS) makes such an assessment unlikely at the least. Turkey is no doubt watching the situation with deep concern (even as Kurdish elements seek their own gains amidst the chaos in northern Iraq), as is Shiite Iran, but ISIS at the moment poses no apparent, imminent threat to those countries.

So what of the existence of Iraqi consent to – indeed, request for – U.S. government intervention here? Doesn’t such consent obviate concerns about violations of international law? I think not, for two reasons. First, when the United States uses force in another state to target a group or individual, two separate issues arise. The first is whether the U.S. is violating Art. 2(4) of the UN Charter by using force on the target state’s territory. This Article 2 concern may be substantially overcome by the target state’s consent. (I say “substantially” and not ‘totally’ for reasons I’ll come back to below.) But one must also ask whether it is lawful under international law for the United States to use force against the targeted group or individual. That is, whether the target poses an imminent threat such that the United States could use force in self-defense, or whether the target is lawfully targeted as part of an armed conflict. I don’t understand state consent per se to have a bearing on that analysis. Imagine, for example, that in the midst of its civil war Sudan consented to China’s using force on Sudanese territory to attack democratic opponents of Sudanese President Bashir. Would Sudanese consent suffice to render such an attack lawful under international law? No – because Article 2(4) is not the only source of international law in the world. See, e.g., treaty-based and customary human rights and humanitarian law, among others.

This brings me back to my hesitancy to say state consent totally resolves questions of the violation of UN Charter Article 2(4), which states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” What’s the best way to read this provision in light of its text and purpose? Consider reading the “or’s” as disjunctive, i.e. states shall not use force either “against the territorial integrity or political independence of any state,” OR “in any other manner inconsistent with the Purposes of the United Nations.” There is understandably no threat to a state’s political independence, for instance, if the state itself asserts its political power to invite the use of force. But article 2 also and separately prohibits the use of force “inconsistent with the Purposes of the United Nations.” These purposes, evident from the Charter’s history and set forth expressly in its Article 1, include the mandate “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes.” A use of force to which Sudan consents – but which otherwise violates principles of international law – seems to me problematic not only under whatever other international law it violates, but also with the terms of Article 2 itself.

The Geneva Conventions are clear that the use of force by one state against another constitutes an international armed conflict, i.e., a war. Congress has never said otherwise, and so, both domestic and international law dictate the same conclusion: the United States and Syria are at war.

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